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Ummini Padmanabhan Of … vs Madi Pillai Lekshmi Pillai And … on 8 November, 1961

Kerala High Court
Ummini Padmanabhan Of … vs Madi Pillai Lekshmi Pillai And … on 8 November, 1961
Equivalent citations: AIR 1963 Ker 51
Author: T Raghavan
Bench: T Raghavan


ORDER

T.C. Raghavan, J.

1. The Civil Revision Petition raises a short question of law regarding the jurisdiction, of the lower court
to have entertained the suit itself. Two suits between
the same parties, one an Original Suit by the petitioner
before me as plaintiff and the other a Small Cause Suit
by the respondents before me against the petitioner as
defendant, were filed before the lower court. The petitioner’s suit was on the original side, whereas the suit
against him, which has given rise to the Civil Revision
Petition, was on the small cause side, of the same court.

On 6th June 1958, the petitioner before me applied for
joint trial of the suits, which the respondents objected to.

Notwithstanding the objection, the suits were finally tried
together by the learned Munsiff, who recorded all the
evidence in the original suit and treated that as evidence
in the small cause suit as well. After trial the original
suit by the petitioner was dismissed and the small cause
suit against him was decreed in terms of the plaint. The
defendant in the small cause suit has come up in revision questioning the correctness of the decision, of the
lower court.

2. The learned advocate of the petitioner has argued only one question regarding the jurisdiction of the lower court to have tried the suit itself on its original side. The learned counsel has contended that under Section 13 of the Kerala Small Cause Courts Act 1957, a suit cognizable by a Court of Small Causes shall not be tried by any other court having jurisdiction within the local limits of the jurisdiction of the Court of Small Causes, by which the suit is triable, save as expressly provided by the Act or by any other Act for the time being in force. He has also invited my attention to Section 30 of the Small Cause Courts Act, which lays down that the court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that jurisdiction and the same court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small Causes, shall be deemed to be different courts. His contention, in short, is that though the learned Munsif had jurisdiction to try the original suit on the original side and the small cause suit on the small cause side, he had no jurisdiction to try both the suits together and record the evidence in the original suit and use that as evidence in the small cause suit; for, both the original and the small cause sides of the sama court are to be deemed as different courts under Section 30 of the Small Cause Courts Act; and that the learned Munsif had no jurisdiction to try the small cause suit on the original side, because Section 13 of the Act prohibits the same.

3. In the present case as I have already indicated, the joint trial was at the instance of the petitioner and notwithstanding the objection of the respondents. Therefore, for one thing it does not lie in the mouth of the petitioner to raise the present objection in revision. But his learned advocate contends that the question being a question of lack of jurisdiction consequent on a statutory prohibition, he can raise it at any stage and in spite of his being the party who invited the court to exercise such jurisdiction. To this the learned advocate of the respondents effectively replies by inviting my attention to two decisions, one by Beasley C. J. In Kelu Kurup v. Subra-mania Ayyar, AIR 1937 Mad 644 and the other by Ramachandra Rao J. In Ethakota Pedda Raju v. ‘Gannamareddi Lakshmayya 1961-2 Andh W. R. 140 : (AIR 1962 Andh Pra 162). In the former, Beasley C. J. held that the High Court was not bound to interfere in revision when the trial court had no jurisdiction to try the suit on the small cause side or conversely had tried a small cause suit on the original side, if the High Court was satisfied that the decree of the trial court was correct. In the latter, Ramachandra Rao J. has referred to the decision of Beasley C. J. and has also considered the other authorities on the question. He has referred to some of the decisions of the other High Courts as well, like the Allahabad High Court, the Bombay High Court and the Calcutta High Court. The learned Judge has also referred to other decisions of the Madras High Court and the Andhra Pradesh High Court and has finally held that when a court tried an original suit as a small cause suit without any objection, and the question of jurisdiction of the court to try the suit on the small cause side is first raised before the High Court in revision, the High Court is not bound to allow the point to be taken for the first time and the question of jurisdiction not raised before the small cause court should not be allowed to be raised in the High Court. He has held further that the High Court is not bound to interfere in revision so long as the decision of the trial court is correct, whether it be a case where a Munsif tried a small cause suit as an original suit, or an original suit as a small cause suit.

4. I am in respectful agreement with the view expressed in the aforesaid two decisions and I do not think it is necessary for me to consider all the decisions referred to by Ramachandra Rao J. in his judgment. Moreover, in the case before me, it was the petitioner who invited the lower court to try both the suits together and it was at his instance that the lower court exercised jurisdiction in the manner in which it had done. Consequently, the contention has to be rejected and the Civil Revision Petition dismissed. The Civil Revision Petition is therefore dismissed with costs.

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